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Court Rules Obama’s Detention Powers Not Limited by Laws of War

by Stephen C. Webster

The Washington, D.C. Circuit Court of Appeals issued a ruling Tuesday that upholds the Bush administration's broad claims of executive power to detain non-citizens.

Flags wave above the sign posted at the entrance to Camp Justice, the site of the U.S. war crimes tribunal compound, at Guantanamo Bay U.S. Naval Base in Cuba May 31, 2009. (REUTERS/Brennan Linsley/Pool) The case, Al-Bihani v. Obama, "was the first by the Circuit Court to directly apply the Supreme Court's 2008 decision in Boumediene v. Bush creating a constitutional right for Guantanamo Bay detainees to challenge their captivity," according to the SCOTUS blog. "Unless reviewed and overturned either by the en banc Circuit Court or the Supreme Court, the new decision will control how scores of detainee cases are resolved in District Court in Washington."

The defendant in the case, whose habeas petition was denied by the court, is Ghaleb Nassar Al Bihani, a citizen of Yemen who served Taliban fighters as a cook and claims he never even fired a shot.

"After all, as Napoleon himself was fond of pointing out, 'An army marches on its stomach,'" wrote U.S. District Judge Richard Leon in early 2009, in a ruling that allowed Al-Bihani's continued imprisonment.

Al-Bihani has been in Guantanamo Bay since 2002. While his habeas petition was filed in 2005, it languished until 2008, when the Supreme Court finally ruled on Boumediene v. Bush, determining that Guantanamo detainees should be allowed to challenge their detention.

"The Circuit Court panel embraced the definition of detention power first spelled out by the Bush Administration (somewhat wider than the Obama Administration has advocated) and adopted by U.S. District Judge Richard J. Leon," SCOTUS blog explained. "Leon has been prepared to allow a wider scope for detention than most of his District Court colleagues; their views on the issue must now yield. Conceivably, the practical result may be that fewer detainees can now win court orders for their release. While the government has not appealed to the Circuit Court all of the prior release orders, it presumably has a free hand now to contest almost any such order."

In the ruling, the court opined:

The legal issues presented by our nation's fight with this enemy have been numerous, difficult, and to a large extent novel. What drives these issues is the unconventional nature of our enemy: they are neither soldiers nor mere criminals, claim no national affiliation, and adopt long-term strategies and asymmetric tactics that exploit the rules of open societies without respect or reciprocity.

"War is a challenge to law, and the law must adjust. It must recognize that the old wineskins of international law, domestic criminal procedure, or other prior frameworks are ill-suited to the bitter wine of this new warfare. We can no longer afford diffidence. This war has placed us not just at, but already past the leading edge of a new and frightening paradigm, one that demands new rules be written. Falling back on the comfort of prior practices supplies only illusory comfort."

"So, if you're not an American, be careful whom you cook for overseas," concluded an analysis at TalkLeft. "What if you cater an affair that is being sponsored by a group that is associated with or supports the goals of one of our enemies and there are firearms at the event? Is that enough to authorize your transport halfway across the world to be held for years in indefinite detention at Gitmo? Using a lesser standard of proof than an American would receive, possibly even 'reasonable belief', it just might be."

Read the court's full opinion (PDF link).

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